Previous month:
August 2013
Next month:
October 2013

Facebook and First Amendment rights

Stacked3This week's Daily Record column is entitled " Facebook and First Amendment rights." My past Daily Record articles can be accessed here.

*****

Facebook and First Amendment rights

Did you know that a few years ago, the number of times that Americans viewed social media sites per day surpassed pornography site views? When that happens, you know you’ve reached a tipping point!

Reaching that dubious milestone was just one more sign that social media is more than just a fad or a passing fancy. After all, it affects every aspect of our lives, from communication and interaction with loved ones and friends to influencing our purchasing choices and the way that we conduct business.

In other words, social media use has permeated our culture and more than ever before, people are sharing information about all aspects of their lives using social networking sites. Some of these disclosures are broadcast publicly while others are limited to select friends and followers. But whether distributed publicly or to a small circle of friends, online communications via social media sites can sometimes have a sizable offline impact, as was the case in a recent federals appeals court case where online activities intersected with the First Amendment.

One issue in Bland v. Roberts, No. 12-1671, was whether the actions of one of the plaintiff’s — showing support for a political candidate by “liking” his Facebook campaign page — was a “communication” protected by the First Amendment. The case arose when one of the plaintiffs, a sheriff’s deputy, “liked” the Facebook campaign page of a candidate for sheriff who was running against the deputy’s boss. The deputy was fired and subsequently sued his former employer alleging that his termination was in retaliation for exercising his First Amendment right to free speech.

Previously, other courts had considered the issue of whether certain types of online statements made on social media constituted speech and and concluded that they were constitutionally protected speech, but the issue of whether a “like” on Facebook was a “substantive statement” and thus protected was an issue of first impression.

In reaching its decision on this issue, the Fourth Circuit U.S. Court of Appeals examined the nature of a Facebook “like,” explaining that, at its essence, it was a form of communication:

“Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement. In the context of a political campaign’s Facebook  page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”

The court then wisely sought out offline comparisons to the online activity of “liking” a Facebook page and concluded that the plaintiff’s Facebook “like” was indeed speech protected by the First Amendment: “In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

In other words, as I’ve repeated time and time again, the medium does not change the message. Online behavior is no different than offline behavior and seeking out the offline corollary for online behavior is the best way to reach appropriate decisions when interpreting 21st century conduct using 20th century precedent. Kudos to the Fourth Circuit for issuing a decision that will withstand the test of time.


Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


NY bar considers whether law blogs are ads

Stacked3This week's Daily Record column is entitled "NY bar considers whether law blogs are ads." My past Daily Record articles can be accessed here.

*****

NY bar considers whether law blogs are ads

When I first started my law blog in 2005, blogging was just becoming mainstream. Very few lawyers blogged and it was unclear whether blogs devoted to discussing and analyzing legal issues constituted an “advertisement” under the New York Rules of Professional Conduct, thus requiring compliance with attorney advertising rules.

This issue was cleared up somewhat in 2007 when the rules were revised and the commentary which accompanied the new rules suggested that law blogs with primarily educational goals, as opposed to those focused on obtaining clients, were not considered legal advertising.

However, up until now, the New York State Bar Association’s Committee on Professional Ethics had never interpreted the relevant rules and weighed in on this issue. Fortunately, in June that changed when the committee handed down Opinion 967, which provided clarification on this issue.

The specific question asked in this case was whether the inquiring attorney’s blog was an advertisement “and thus subject to the retention and preservation requirements of the attorney advertising rules” where the attorney was employed by a corporation promoting work-life balance and planned to blog about work-life balance issues on the corporation’s behalf under his name for a blog titled “The [Inquirer’s Name] Esq. Blog.”

The committee concluded that because his blog would not focus on legal matters and there was no indication that he intended to solicit legal clients through the blog, it would not be deemed to be an advertisement.

In reaching this very specific conclusion, the committee also addressed the broader issue relating to what types of legal blogs might require an attorney to comply with the applicable attorney advertising rules.

Importantly, the committee noted that pursuant to the Comments to Rule 1.7, not all communications made by a lawyer constitute an advertisement: “For example, marketing and branding items such as pencils or legal pads with a firm name do not constitute advertisements if their primary purpose is general awareness and branding, rather than the retention of the law firm for a particular matter.  Cmt. [8]. Sponsorship of cultural or sporting events, with dissemination of information about the lawyer limited to specified narrow categories, is also not considered advertising. Cmt. [10]. Even when communications from lawyers contain information about the law, they are not necessarily advertising. …”

Then, in a footnote, the committee elaborated upon this concept, explaining that Comment 7 to Rule 7.1 specifically states that communications by lawyers — including blog posts — where the primarily goals of the communications are educational, do not constitute advertising: “For example, ‘[t]opical newsletters … or blogs intended to educate recipients about new developments in the law are generally not considered advertising.’ Rule 7.1, Cmt. [7]; see also, e.g., N.Y. State 918 (2012) (educational legal video that does not encourage viewers to retain the law firm is not an advertisement because the primary purpose is not retention of the law firm); N.Y. State 899 (2011) (providing general answers to questions in a legal chat room, without more, does not constitute advertising).”

The bottom line is that the New York lawyer advertising rules are not triggered when lawyers blog about legal issues with the primary goal of providing educational content, rather than encouraging potential clients to retain the lawyer’s services. In other words, where a blog is written by an attorney, but the primary purpose of the blog is educational and is not retention of the attorney, it is not an advertisement. To the extent that was unclear before, it is no longer and blogging New York lawyers can rest easy tonight.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Lawyers’ use of cloud computing on the rise in 2013

Stacked3This week's Daily Record column is entitled "Lawyers’ use of cloud computing on the rise in 2013." My past Daily Record articles can be accessed here.

*****

Lawyers’ use of cloud computing on the rise in 2013

The latest survey results are in: Lawyers are using cloud computing legal software products in record numbers. At least, those were the results of two recent surveys conducted to determine lawyers’ technology preferences.

First, there are the results from the American Bar Association’s latest Legal Technology Survey Report, a multi-volume report issued annually, which focuses on technology trends in the legal industry.

According to the results of the ABA’s survey, the number of lawyers using cloud computing products increased dramatically in 2013. In 2011, only 16 percent of lawyers reported using cloud computing in their law practices, with that number increasing only slightly in 2012 to 21 percent. But this year, 31 percent — nearly one third of all lawyers — now use cloud computing software to manage their law firms. Not surprisingly, innovative solo practitioners lead the way, with 40 percent reporting use of cloud computing in their law practices. And, of those who reported using cloud computing tools for law-related tasks, 70 percent said they would continue using them in the future.

So, why are lawyers using cloud computing to run their law practices? According to survey respondents, it’s because cloud computing is affordable, accessible from anywhere and convenient. So, when lawyers were asked which cloud computing features were most beneficial to the law practices, convenient access lead the way, with 74 percent of respondents citing this as the most valuable feature offered by cloud computing services.

The next most popular feature was 24/7 access, according to 63 percent of lawyers. Affordability was cited as an important by 56 percent, data backup was cited by 49 percent, ease of use and reduced learning time cited by 44 percent, and reduced need for IT staff came in last, with 41 percent citing that benefit.

And, last but not least, although lawyers use cloud computing products to manage all aspects of their law practices, cloud-based law practice management systems are one of the more popular uses. And lawyers who use cloud-based law practice management systems have strong preferences regarding the most important features, with 46 percent indicating that time and billing functions were the most important.

Case and matter management and document coming in tied at second place, with 44 percent of respondents citing each function as important. Other important law practice management functions cited by responding attorneys included: contact management, cited by 39 percent; calendaring, cited by 37 percent; conflict checking, cited by 34 percent; expense management, cited by 27 percent; accounting, cited by 27 percent; client intake, cited by 25 percent; document assembly, cited by 24 percent; court docketing, cited by19 percent; and financial reporting, cited by 19 percent.

Next up, the recently released 2103 International Legal Technology Association (ILTA) and Inside Legal Technology Purchasing Survey results, which included responses from more than 1,200 ILTA member firms.

According to the survey results, 34 percent of responding firms reported actively using cloud computing products in the past year and 36 percent reported that they were actively researching cloud computing products or that cloud computing tools were on their IT roadmap.

The survey results also indicated that the top five ways that responding firms were using cloud computing were: 1) storage/backup, cited by 55 percent, 2) disaster recovery, cited by 50 percent, 3) email, cited by 35 percent, 4) document management, cited by 29 percent, and 5) case management, cited by 18 percent.

So, it seems that the verdict is in. Cloud computing is no longer a foreign concept, and as lawyers become more familiar with it and its many benefits, lawyers are increasingly taking advantage of all that cloud computing offers their busy law practices. But, the question remains: Will the number of lawyers using cloud computing level off or will law firms continue to flock to the cloud in record numbers? Tune in next year and see!

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.